From Russia with Love

In my first post, I want to thank Dean O’Hear for the invitation to serve as January’s Student Blogger of the Month, as well as my predecessors for the high bar they have set for me.  It’s rare that someone willingly gives me a forum to opine on topics of my choosing, and I am glad (and honored!) to have this one. 

A little over a month ago The Economist ran a special report on corruption in Russia, including a brief note about the mounting problems within the Russian judiciary.  Although the latter article mostly contains interesting observations regarding prosecutorial abuse within the criminal justice system, I want to highlight one particular passage concerning civil litigation:

Things are not much better in corporate disputes. Large companies rarely trust in a judge’s unprompted decision. In commercial courts a judge often takes a bribe for reaching a speedy conclusion. All this helps to explain why the European Court of Human Rights is overwhelmed with Russian cases, and why large Russian companies seek justice in London. The Yukos case [described in the former link] showed that the courts have become part of the Kremlin machinery. The problem, says one Moscow lawyer, is that “the law in Russia is often trumped by money and always by high-level power.”

According to some, the same thing may be happening in the United States. 

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First Among Equals

The U.S. Court of Appeals for the D.C. Circuit is widely seen as the “first among equals” of the U.S. circuit courts. It is the most prominent, it deals with the biggest cases, and its opinions are most highly regarded. This need not necessarily be the case. During the time that Learned Hand (left) and his cousin Augustus sat on the Second Circuit, for instance, the Second Circuit was the most prominent in the land. When the U.S. Supreme Court failed to assemble a quorum to hear an important antitrust case, the Court chose to certify the case to a panel of the Second Circuit for final resolution. Learned Hand authored a significant antitrust decision for the panel in the case (148 F.2d 416), and their power of mandamus was later upheld by the Supreme Court (334 U.S. 258). I have heard it argued that the Ninth Circuit is on the rise to the point where it may soon displace the D.C. Circuit as the most prominent court below the Supreme Court.

I mention all of this to ask the simple question, prompted by yesterday’s indictment of Governor Blagojevich: Is the Northern District of Illinois the new Southern District of New York? Traditionally, SDNY, as it’s known in the case cites, has been the most prominent of the federal district courts. For instance, Rudy Giuliani left his post as the associate attorney general, number three at Department of Justice, to become U.S. Attorney for the Southern District of New York.

But with Patrick Fitzgerald running the Northern District of Illinois, that seems to be the home of many major cases. 

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Does “Judicial Activist” Mean Something?

Does the term “judicial activism” have some objective meaning? The Capital Times does not seem to think so, reporting earlier this week:

[C]ourt observers and legal scholars are skeptical that the descriptive terms [judicial activist and strict constructionist] have any meaning, except as buzzwords used by conservative candidates to create a clear distinction between themselves and their more liberal rivals.

Now, I do not intend to defend “strict constructionist,” which is the term the story uses to describe conservatives, because I do not think most conservatives are “strict constructionists.” To quote Justice Scalia,

I do not think the Constitution, or any text should be interpreted either strictly or sloppily; it should be interpreted reasonably. Many of my interpretations do not deserve the description “strict.” I do believe, however, that you give the text the meaning it had when it was adopted.

Textualist and originalist are better terms. Judicial restraint used to be the preferred description, although judicial modesty is on the rise as the preferred label.

My point in this post, however, is to defend the term “judicial activist” as possessing objective meaning.

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